On Friday, the Office of the Director of National Intelligence released a Foreign Intelligence Surveillance Court opinion that details blatant violations of Americans’ privacy. Most distressingly, high-profile American political leaders were among the targets surveilled by the FBI. The heavily redacted opinion released on Friday reveals that the FBI attempted improper searches of the communications of a United States Senator, a state senator, and a judge who complained about civil rights violations by local police.
If that sounds beyond the pale, the National Security Division (NSD) of the United States Department of Justice thought so, too.
In the former case, the NSD determined that the “querying standard” used by the FBI to obtain foreign intelligence information was not met. In the latter case, it’s a little more opaque. Last October, the FBI used the anonymous Judge’s social security number to search the Section 702 database. The Judge "had complained to FBI about alleged civil rights violations perpetrated by a municipal chief of police.” The National Security Division’s review stated that this search was also illicit.
While the U.S. Senator has been notified about the improper search, the state Senator and the state Judge have not. It is clear is that a continued pattern of government abuse persists when it comes to Section 702 of the Foreign Intelligence Surveillance Act.
Although the FISC states that, “there is reason to believe that the FBI has been doing a better job in applying the querying standard,” the anonymous judge also admits that “[t]he prevalence of non-compliant queries conducted by the FBI, and particularly of broad queries that were not reasonably likely to return foreign intelligence information or evidence of crime, has been a major focus of concern….”
Indeed it has been. In fact, the same court found in 2018 that there was a “deficiency in the FBI’s querying and minimization procedures” based on “large-scale, suspicionless queries….”
The Court found that the FBI’s implementation of remedial measures has improved the Bureau’s compliance with Section 702’s specificity requirements. But they make sure to soften that finding with a disclaimer: “NSD devotes substantial resources to its oversight efforts, but still can examine only a fraction of total FBI queries. It is therefore possible that serious violations of the querying standard have so far gone undetected.”
The FBI has a long track record of repeatedly misusing the Section 702 database, but to poll information on high-profile elected officials is a new level of abuse. These revelations come amid a push by the Biden administration to reauthorize Section 702 mere months before it expires at the end of this year. When federal authorities inappropriately attempt to spy on legislators – and even judges – we truly find ourselves with one foot off the merry-go-round. Congress must take this into account in the coming months.